Do We Have a First Amendment Right to Mock the Government?

The NSA and DHS have received their fair share of criticism in recent months.

The Department of Homeland Security (DHS) and the National
Security Administration (NSA) apparently were not amused by the clever t-shirts
Dan McCall created and sold via Zazzle.com. The two agencies sent cease and
desist letter to the online retailer requesting the immediate removal of all
merchandise using their names and logos.

One item removed by Zazzle displayed the NSA's official seal
with the words "spying on you since 1952." Another featured a variation of the
NSA seal with the statement "The NSA: The only part of government that actually
listens." A third included a Department of Homeland Security seal, which had
been altered, along with the description, "Department of Homeland Stupidity."

The DHS relied on a federal statute that prohibits the mutilation
or alteration of a seal of any department or agency of the United States, while
the NSA cited a law that specifically makes it illegal to misuse the NSA trademark
or logo. Now, McCall is fighting back with a federal lawsuit, which alleges
that his First Amendment rights have been infringed.

Defendants violated
the First Amendment to the United States Constitution by threatening to enforce
50 U.S.C. § 3613 and 18 U.S.C. §§ 506, 701, and 1017 to forbid McCall from
displaying his NSA Listens Parody, his NSA Spying Parody, and his DHS Stupidity
Parody, from placing the Parodies on products to identify the targets of his
criticism, or from selling mugs, T-shirts or other items bearing those designs
to customers who want to display the items to express their own criticisms of
NSA and DHS.

McCall further argues that he made fair use of the NSA and
DHS seals to identify federal government agencies as the subject of criticism.
Moreover, he maintains that no reasonable viewer is likely to believe that any
of the materials is affiliated with or sponsored by the agencies. The suit
specifically asks the court to declare the federal laws are unconstitutionally
overbroad in violation of the First Amendment.

The NSA and DHS have received their fair share of criticism
in recent months. Next on the list may be that they lack a sense of humor.

Donald
Scarinci is a New Jersey lawyer and managing partner of Scarinci Hollenbeck,
LLC a regional law firm with offices in New York, New Jersey and Washington, D.C.
His columns feature legal issues in the news and articles about the business
and practice of law. He also writes regularly in Politicker NJ and the
Constitutional Law Reporter.